In WV, if you go to magistrate court and you lose (speeding ticket, for example) you appeal to the circuit court (general jurisdiction).
When you get to the circuit court, you get a brand new trial ( appeal de novo)
It’s still a trial court! New trial, old record doesn’t count
If you lose in general jurisdiction, you appeal to appellate court
They look at the record of the prior case, precedent
Lawyers for either side write legal briefs (extended argument for one side) in which you set forth what you think the law is, what precedents, statutes, etc lead you to believe this is the law and that your side should win
In most states/kinds of cases, you have the right to one appeal, which would be to some kind of intermediate appellate court; they have a duty to hear your appeal.
In a lot of states, for certain kinds of cases, that appeal is to a court of last resort .
For instance capital punishment you get an automatic appeal to the state’s highest court.
Other cases: you ask the court of last resort to hear your case; it’s discretionary for them (they would issue a writ of certiorari )
In WV, there is no intermediate court of appeals, only Supreme Court of Appeals
Cases are all discretionary (no capit. punishment)
Courts of gen. juris
In some states called circuit courts or superior courts, courts of common pleas and even district courts.
KY
Federal Courts:
: district courts of appeal & circuit courts are the lower ones
NY: no.1 trial court is called the Supreme Court (Law & Order)
Chart on p.31:

Courts of limited jurisdiction in the federal system: called “Article X Courts”
Every state has at least one federal District Court (WV has 2)
Most of your federal trials start here
If you lose, you have a right to an appeal to
Fed judiciary divided up into courts and circuits
Each district part of a circuit
If you appeal from fed. District court it goes to the fed.
Circuit court (this one located in Richmond)
If you lose there, you can petition the Supreme Court for a writ of certiorari
Receive about 8000-10000 and hear between 110-140 cases
Your odds are pretty slim
Later: what kind of cases they are likely to take
How do they decide which ones they’re going to take?
Law clerks review them
For 8 justices, the clerks work in a pool and divide them up, partially on the basis of which Justice they work for
-
Justice Stevens isn’t part of the pool
Justices get together in conference room and discuss them.
The Rule of Four: if four justices want to hear it, the Court will hear the case o Not enough to win, but enough to get it on docket o Originated with justices who wanted to settle western water-rights cases
Legal reasoning happens within this infrastructure
Ashford v. Thornton – Ashford charges Thornton with rape & murder of his sister through the appeal process, or initiating a criminal proceeding as a private citizen. This was the original way of prosecution
long after this procedure originated, crown begins to pursue cases as a harm to society
public prosecution & appeal existed alongside for a time; 1 year and 1 day statute of limitations on appeal
after a year witnesses are gone, evidence is disturbed, people didn’t want to wait
appeal fell into disuse, but was still on the books
Ashford brings charges, Thornton pleads not guilty and his defense is the trial by battle (throws his glove down.. “not guilty and I am ready to defend the same by my life”
In 18 th
-century England we call this due process of law (have the lawyers duel with words or duel yourself) o Trial by battle came to Britain from the Normans in
1066

o Before Normans, you had 2 methods for dealing with crimes against peace & order:

Chasing and killing them after catching

Trial by ordeal – i.e. holding hot bricks, drowning witches (and if you drowned, you were not guilty; live and you get burned)
-
That’s 1066-1818!
Ashford thinks about it; comes back
He cites an exception to the law: strong presumptions of guilt (others could have been if the accuser was a woman, child, old, etc) o Originally this meant like if you were found over a body (in that case, we get out the rope and string you up) o Here the strong indications were:
 Someone had had “carnal knowledge” of Mary

Thornton had said he would have her that night

They were seen out together

Footprints looked like a pursuit

Marks looking like impression of human hand had grasped and held with violence

Clothes were torn

Impression of human figure lying

Thornton was stained with blood

He admits he had carnal knowledge, but with consent o There’s a lot of evidence indicating that he might have done this!

Is it strong enough to deny him the right to defend himself by battle?
 If he was a virgin, and he’s telling the truth there would be blood even without force
 He had been tried and acquitted before; found not guilty

This is a separate charge
Rules in favor of Thornton; Ashford appeals
Gets into appellate court o Appellate courts have a panel of judges
Behrman quote of the day: “You cannot understand Scots law until the second 5 already gone.” th is

Trial by battle would seem archaic in 1800’s England
Second indictment would also seem archaic
Difference between US & England – Parliamentary sovereignty (legislative supremacy)
no judicial review
no overturning on basis of constitution b/c the constitution is what Parliament says it is o the constitution is organic statutes, custom and tradition
judges here can’t change anything in the statute
can interpret a little, weasel a little, but can’t say it’s invalid
The appellate court here upholds right to trial by battle in response to appeal o Next year Parliament meets and gets rid of battle and appeal
The obvious point: the court forced the hand of Parliament, and in doing so made policy
What would have happened if the Court would have just gotten rid of trial by battle (by saying it was no longer part of the law)?
Appeal would have been affirmed w/o battle and Parliament would not have been outraged, hence not acted
Had the chance to make the law a little better or a lot better by nudging Parliament
Even when deprived of judicial review, courts still make policy
Conclusion: There is no fine line between law and politics. The law is part of politics.
It’s politics in a different form than it takes in legislature, agencies, etc. – but it’s still a form of politics
Legalism – ideology that tends to look down on politics; politics as sort of a nasty activity based on brute force
the basic decision rule in politics in countries like the US is counting noses and saying one side is big enough to beat up the other side – it’s brute force!
judicial politics isn’t the same kind of brute force; it’s power wealth and influence against the weaker party. And there’s compromise, etc.
legalism says decisions shouldn’t be based on power, accommodation & compromise, but simply what’s right
but the problem with that is that not everbody is going to agree on what’s right; on the other hand we can usually agree on who voted for A or B

legalism says that compromising (i.e. on human life for example) is not good. Politics is kind of dirty, brutal and
“what’s right” is better.
But there is still politics there (that is the lesson for today I think)
Question to think about: Is legalism a form of fundamentalism?